United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3306

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United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Robert E. Collier, *

*

Appellee. *

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Submitted: April 15, 2009

Filed: September 21, 2009

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Before RILEY, BENTON, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

In 2005, Robert E. Collier pled guilty to one count of possession with intent to

distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). At his first sentencing,

the district court sentenced Collier to 72 months imprisonment. After this court

remanded for resentencing, see United States v. Collier, 191 F. App’x 514 (8th Cir.

2006) (unpublished per curiam), Collier was resentenced to 120 months

imprisonment. In 2008, Collier moved to have his sentence reduced pursuant to 18

U.S.C. § 3582(c)(2). The district court granted Collier’s motion and reduced his

sentence to 70 months imprisonment. The government appeals. Because Collier’s
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sentence was not eligible for reduction under section 3582(c)(2), we vacate and

remand.

I.

On January 8, 2004, Collier was approached by an officer with the St. Louis

Police Department after the officer witnessed Collier quickly place an object into his

jacket pocket. After a warrant check revealed active warrants for Collier, the officer

placed him under arrest. A search incident to Collier’s arrest revealed 22.81 grams

of a substance later determined to be cocaine base (“crack cocaine”). On August 30,

2005, Collier pled guilty to possession with intent to distribute cocaine base, in

violation of 21 U.S.C. § 841(a)(1). Prior to sentencing, the United States Probation

Office prepared a presentence investigation report (PSR). The PSR calculated

Collier’s offense level as 25, see United States Sentencing Commission, Guidelines

Manual, §2D1.1(c)(6) (Nov. 2004), after a three-level reduction for acceptance of

responsibility, see id. §3E1.1, and a criminal history category of IV. However,

Collier’s extensive criminal history qualified him as a career offender under USSG

§4B1.1, and raised his offense level to 31—after the three-level reduction for

acceptance of responsibility—and his criminal history category to VI. This resulted

in an advisory Guidelines range of 188 to 235 months imprisonment. But for the

career offender enhancement, Collier’s Guidelines range would have been 84 to 105

months imprisonment.

At the sentencing hearing, neither party made objections to the PSR, and the

district court adopted it without change. After noting Collier’s history of military

service and his addiction to crack cocaine, the court sentenced Collier to 72 months

imprisonment, which represented a 116-month downward variance from the bottom

end of Collier’s advisory Guidelines range. The court explained Collier’s sentence

this way:
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The guidelines say 188 to 235 [months]. . . . I agree that I think your

problem is mainly drug addiction. And you did honorably serve this

country in the military with a few problems, but you were honorably

discharged. And it seems to suggest that you have some leadership

capability.

 . . .

The Court is going to sentence you to 72 months. Now, [t]he Court feels

that this is appropriate because your main problem is that you are a

cocaine addict. You need to get up off this, because next time you come

back, they are going to bury you. You understand? . . . I think that is

sufficient in this instance. One of the problems here is that you did not

get an appropriate sentence perhaps in those other cases. I think it

should have been more significant. And that is one of the things here

with your addiction. The appropriateness of previous sentences to make

you recognize the seriousness of this problem, your cocaine addiction,

and [t]he Court looks favorably upon your honorable service to this

country in the United States military. So 72 months.

(Sent. Hr’g Tr. 7:1–12:6, Nov. 17, 2005.) The government appealed this sentence as

substantively unreasonable, and this court remanded for resentencing. Collier, 191 F.

App’x at 515–16. At the resentencing hearing, the district court again adopted the

PSR without change, and resentenced Collier to 120 months imprisonment. The court

based this sentence on factors similar to those in its original sentence, including “the

age that [Collier] will be at the time that he is released from custody, his military

service, and his whole addiction.” (Resent. Hr’g Tr. 15:19–15:21, Oct. 12, 2006.)

This sentence was 68 months lower than the bottom end of the advisory Guidelines

range, and 15 months above what Collier’s Guidelines range would have been, but for

the career offender enhancement. Neither party appealed this sentence.

In April 2008 Collier moved, first pro se and then through appointed counsel,

for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). Collier based this

motion on Amendment 706, as modified by Amendment 711, which reduced base
1

Shortly after passage of Amendment 706, the Commission gave it retroactive

effect. USSG App. C, Amend. 713; see also United States v. Gamble, 572 F.3d 472,

474 (8th Cir. 2009). 

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offense levels for crack cocaine cases by two levels.1

 USSG App. C, Amend. 706.

The district court granted Collier’s motion and reduced his term of imprisonment to

70 months. 

The government now appeals, arguing that because Collier was sentenced as a

career offender, he is not eligible for a sentence reduction under section 3582(c)(2)

and Amendment 706.

II.

Section 3582(c)(2) authorizes a court to reduce a defendant’s sentence “in the

case of a defendant who has been sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the Sentencing Commission.”

18 U.S.C. § 3582(c)(2). In Amendments 706, 711, and 713, the Sentencing

Commission retroactively lowered the sentencing range for certain drug offenses by

amending section 2D1.1 of the Guidelines. Gamble, 572 F.3d at 474. We have held

that Amendment 706 is not applicable to defendants who were sentenced under the

career offender provisions of the Guidelines. See United States v. Tingle, 524 F.3d

839, 840 (8th Cir.) (per curiam), cert. denied 129 S. Ct. 473 (2008) (“[T]he Sentencing

Commission . . . did not lower the sentencing range for career offenders under USSG

§ 4B1.1 . . . .”); see also United States v. Miranda, 524 F.3d 840, 841 (8th Cir. 2008)

(per curiam); United States v. Thomas, 524 F.3d 889, 890 (8th Cir. 2008) (per

curiam). We review de novo “whether the district court properly determined it had

the authority to modify a sentence under 18 U.S.C. § 3582(c)(2).” United States v.

Baylor, 556 F.3d 672, 673 (8th Cir. 2009) (per curiam). 
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Collier argues that his sentences—both the 72-month original sentence and the

120-month resentence—were based not on the career offender enhancement, but on

section 2D1.1 of the Guidelines, and that because the Sentencing Commission lowered

the offense levels in section 2D1.1, section 3582(c)(2) permits reduction of his

sentence. This argument contradicts the record, which clearly indicates that both the

parties and the court understood Collier to have been sentenced as a career offender.

At Collier’s first sentencing, the PSR recommended a Guidelines range based on the

career offender enhancement, the court adopted that PSR without change, the court

expressly found the career offender enhancement to be applicable, and both parties

made reference to the career offender enhancement during the sentencing hearing. On

appeal of Collier’s first sentence, both parties acknowledged that Collier was

sentenced as a career offender. See Appellant Br. 10, Collier, 191 F. App’x 514

(“Neither party disputed the applicable Sentencing Guidelines range of 188–235

months imprisonment.”); Appellee Br. 8, Collier, 191 F. App’x 514 (“The district

court determined the correct advisory guideline range to be 188 to 235 . . . .”). In

remanding the case for resentencing, this court also acknowledged that Collier was

correctly sentenced as a career offender. See Collier, 191 F. App’x at 515, 516

(noting that the district court calculated Collier’s Guidelines range based on the career

offender enhancement, and finding that “the district court correctly determined the

applicable guidelines range”) (internal quotations omitted). At resentencing, the court

again adopted the PSR without change, and both parties made reference to the career

offender enhancement during the resentencing hearing. Given such evidence in the

record, we are not persuaded by Collier’s argument that we should now understand

his sentence to have been based not on the career offender enhancement, but on

section 2D1.1.

Additionally, Collier’s argument misunderstands how the Sentencing

Guidelines are applied. “‘The Sentencing Commission directs courts to apply the

guidelines provisions in a specific order.’” United States v. Tolliver, 570 F.3d 1062,

1065 (8th Cir. 2009) (quoting United States v. Doe, 564 F.3d 305, 311 (3d Cir.
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2009)). A sentencing court must proceed in ascending order through the Guidelines

“by first calculating the base offense level under Chapter 2, then adjusting that level

for various factors listed in Chapter 3, and then determining the criminal history

category under Part A of Chapter 4 and any adjustments under Part B of Chapter 4,

such as the enhanced offense levels for career offenders.” Id. Collier’s PSR followed

this procedure by first analyzing his Guidelines range under section 2D1.1, then

moving on to his range as a career offender under section 4B1.1. 

Collier’s argument that his sentence was nevertheless not “based on” the career

offender enhancement is the same argument that the First Circuit rejected in United

States v. Caraballo, 552 F.3d 6 (1st Cir. 2008), cert. denied 129 S. Ct. 1929 (2009).

In Caraballo, the defendant pled guilty to two counts of possessing cocaine base with

intent to distribute. Id. at 7. The district court determined that his criminal record

qualified him as a career offender, which yielded a Guidelines range of 151 to 188

months imprisonment. Id. at 7–8. The court then sentenced the defendant to 108

months imprisonment. After the Sentencing Commission promulgated Amendment

706, the defendant moved for reduction of his sentence under section 3582(c)(2),

which the court denied, concluding that it lacked authority to reduce defendant’s

sentence because he had been sentenced as a career offender. Id. On appeal, the

defendant essentially argued that “even though his sentence was not dictated

exclusively by the crack cocaine guideline, it was ‘based on’ that guideline because

that guideline was a way station along the road that the district court traveled in

arriving at the appropriate sentencing range.” Id. at 9. The First Circuit rejected this

argument, noting that “even though the defendant received a non-guideline sentence,

that had no effect on the sentencing range applicable in his case . . . .” Id. at 11. 

Collier’s argument here fails for the same reasons. While the PSR may have

contemplated the section 2D1.1 drug quantity table before reaching the section 4B1.1

career offender enhancement, it ultimately based the Guidelines range on section

4B1.1. The district court adopted the PSR without change both at Collier’s original
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sentencing and subsequent resentencing, and both parties framed their sentencing

arguments in terms of the career offender enhancement. That the district court

departed significantly from the advisory Guidelines range when sentencing Collier

does not change the analysis. Thus, because Collier was sentenced as a career

offender, his sentence was unaffected by Amendment 706 and section 3582(c)(2).

The district court lacked authority to reduce Collier’s sentence and erred in granting

his motion. 

III.

Accordingly, we vacate Collier’s reduced sentence of 70 months imprisonment

and we reinstate his sentence of 120 months imprisonment.

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